Charge expenses in the monitori procedure

Abstract

Although Article 8 of Law 3/2004, of December 29th, establishing measures to combat late payment in commercial transactions, empowers the creditor to claim to the debtor compensation for the recovery of costs generated because of payment delay of debts arising from commercial operations, the lack of coordination between those rules and the procedural Law prevents the recovery of all the costs of the claim. Specifically in the course of the procedure monitorio, commonly used to promote judicial claims of amounts arisen from trade operations, and other legal procedures in which the intervention of lawyer and solicitor is not compulsory (which is the case of claims by verbal judgment and executions of amounts not exceeding 2.000 euros), no mean is established to enable the recovery of the costs that might have been originated once the procedure has started.

After analyzing the different positions of jurisprudence and doctrine in this regard, we conclude by proposing a system similar to that of condemnation of court costs –which would harmonize the substantive rule which grants the right to receive compensation for the costs incurred in the claim– with the procedural rule, that does not provide the appropriate mechanism to enable the viability of that right.